Olic v. Lizaraga

Filing 63

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 02/08/17 recommending that the undersigned adopts the discussion in the January 9, 2017 orderas its Findings and Recommendations herein. The undersigned finds that Nettles barsconsideration of this case as a habeas corpus case; it should be dismissed. Referred to Judge Kimberly J. Mueller Objections due within 14 days. (Plummer, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MILORAD OLIC, 12 13 14 15 No. 2:14-cv-02120 KJM GGH Petitioner, v. FINDINGS AND RECOMMENDATIONS JOE A. LIZARAGA., Respondent. 16 17 Plaintiff is a state prisoner proceeding pro se, has filed a petition for a writ of habeas 18 corpus under to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge 19 pursuant to Local Rule 302(c)(21). 20 On February 9, 2016, the district court declined to adopt the Magistrate Judge’s findings 21 and recommendations recommending dismissal for failure to oppose respondent’s motion to 22 dismiss and giving petitioner an opportunity to prosecute this action based on petitioner’s January 23 4, 2016 filing which the court construed as an “overdue opposition.” ECF No. 48. On March 25, 24 2016 the Magistrate Judge issued new findings and recommendations recommending that 25 respondent’s motion to dismiss be granted on the merits, finding that to grant petitioner’s claim 26 would not necessarily result in earlier release under controlling law at the time, and therefore that 27 petitioner could not state a cognizable habeas claim. ECF No. 51. On September 8, 2016 the 28 district court declined to adopt the findings and recommendations and referred the motion to 1 1 dismiss back to the Magistrate Judge for consideration of the Ninth Circuit’s recent opinion in 2 Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2015)(en banc). ECF No. 57. 3 On January 9, 2017 the undersigned filed an Order discussing inter alia Nettles which was 4 served on all parties. In this order, the undersigned found that petitioner failed to overcome the 5 barriers to his habeas petition described in the Order and prior Findings and Recommendations, 6 and was given the further opportunity of attempting to persuade the court that Nettles does not bar 7 habeas jurisdiction in this case, converting his pending action into a civil action under 28 U.S.C. § 8 1983, or dismissing his habeas petition without prejudice to refilling his claim as a section 1983 9 claim. ECF No. 61. On January 23, 2017 petitioner declined to elect a section 1983 remedy, and 10 disputed whether Nettles had any impact on his case. ECF No. 62. 11 Conclusion 12 The undersigned remains persuaded that Nettles bars consideration of this action as a 13 habeas action. Accordingly, the undersigned adopts the discussion in the January 9, 2017 order 14 as its Findings and Recommendations herein. The undersigned finds that Nettles bars 15 consideration of this case as a habeas corpus case; it should be dismissed.. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 20 Findings and Recommendations.” Any response to the objections shall be filed and served within 21 fourteen days after service of the objections. Failure to file objections within the specified time 22 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 23 Cir. 1991). 24 Dated: February 8, 2017 25 /s/ Gregory G. Hollows UNITED STATES MAGISTRATE JUDGE 26 27 28 2

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